John Henry Hewett v. State of North Carolina, R. L. Turner, Warden, Central Prison, Jerry Ray Cassada v. State of North Carolina

HAYNSWORTH, Chief Judge

(concurring) :

I subscribe to the opinion of my brother, WINTER, though I wish to add a word about the problem of justiciability.

The Supreme Court has told us plainly that, when the sentence expires after the filing of the habeas petition, we are to deal with the problem in terms of mootness rather than of present custody. Carafas v. LaVallee, 391 U.S. 234 , 88 S.Ct. 1556 , 20 L.Ed.2d 554 ; Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889, 1912 , 20 L.Ed.2d 917 . I agree that, under the standards of mootness those cases prescribe, a bare possibility of adverse collateral consequences is enough to preserve the justiciability of the litigation. There is such a bare possibility here, but very bare it is.

These are multiple offenders. One already is now again in prison. Neither has claimed an interest in restoration of his right to vote, to serve on juries or to run for elective office. If either should have such a wish, his record would prevent his entertaining any reasonable hope of its fulfillment in the absence of long years of demonstrated rehabilitation. The great probability is that what we do today, after expending a fair amount of judicial effort, is and will be wholly meaningless to either man in its practical application.

In another case that might not be so. Revocation of probation after one conviction could have important collateral consequences to the legal rights and to the social and economic affairs of the individual. If mootness is not to be found in that situation, perhaps it should be found in none, for arbitrary lines of demarcation are harsh and the resolution of justiciability problems ought not ever be made to depend upon preliminary litigation of fact questions such as the individual’s interest in the restoration of his forfeited rights and his practical chances of obtaining it.

*1326 If such collateral consequences are of some practical importance to the individual, however, I gravely doubt that he would understand that he would be entitled to their adjudication if he filed his petition the day before his discharge from prison but not if he filed the day after. His interest in either event is the same, but we could act in the latter case only if it were found that after his unconditional release, he was still in the custody of the state under the earlier commitment. This court has been in the forefront of the relaxation of the more rigid and technical concepts involved in the definition of custody, * but I do not think we could find such custody here. If the petition had been filed promptly and the courts had not moved the proceeding to final adjudication until too late to grant release from prison, the relief the man sought, relief from collateral consequences of the conviction or probation revocation might be thought appropriate as a small consolation for the law’s delay, but these proceedings are not appropriate for trials of the courts. The present rule has the virtue of providing a clear measure by which to answer the question of justiciability, without preliminary litigation, but it makes no distinction between those who have some practical interest in litigating and those who do not. When the indigent can freely litigate without cost to himself, there are no collateral circumstances tending to separate the practically interested litigants from the disinterested.

Courts, already greatly burdened, ought not to be required to spend a vast amount of time laboriously bringing forth decisions of no practical consequence to anyone. There is too much of importance to do more promptly than it now can be done to divert our efforts to jousting with windmills. As long as a potential interest in the restoration of civil rights to felons is alone enough to avoid dismissals of habeas proceedings for mootness, however, we will move in an esoteric and hypothetical area of the law.

Rowe v. Peyton, 4 Cir., 383 F.2d 709 , aff’d sub. nom. Peyton v. Rowe, 391 U.S. 54 , 88 S.Ct. 1549 , 20 L.Ed.2d 426 ; Word v. North Carolina, 4 Cir., 406 F.2d 352 .